Coleman v. Thompson

• Decision Date: 16 March 1953
• Docket Number: No. 38877,38877
• Citation: 216 Miss. 867,63 So.2d 533
• Parties: COLEMAN v. THOMPSON et al.
• Court: Mississippi Supreme Court

Page 533

63 So.2d 533

216 Miss. 867

COLEMAN v. THOMPSON et al.

No. 38877.

Supreme Court of Mississippi.

March 16, 1953.

Suggestion of Error Overruled April 13, 1953.

See 63 So.2d 832.

Coleman & Dobbs, Ackerman, for appellant.

Creekmore & Beacham, Jackson, Jack B. Carlisle, Ackerman, for appellee.

LEE, Justice.

W. D. Coleman appealed to the circuit court on a bill of exceptions from an order and resolution of the Board of Supervisors of Choctaw County, issuing county road bonds in the sum of $100,000. From an adverse judgment there, he appealed here.

On March 10, 1952, the board of supervisors, acting under Chapter 241, Laws of 1950, adopted a resolution, declaring its intention to issue the bonds of Choctaw County for road purposes in the sum of $100,000. The existence of all necessary conditions precedent was adjudicated. There was publication of notice, as required by law, of the intention of the board to execute and deliver the bonds unless a petition, signed by at least 20% of the qualified electors of the county, protesting the issuance or calling for an election thereon, as provided by Section 5 of said Chapter, should be filed with the clerk at or prior to 5 o'clock P. M. on April 7, 1952.

[216 MISS 874] At 9:05 A. M., April 7, 1952, there was filed with the clerk of the board a petition with 754 signers, more than 20% of the qualified electors of the county, praying that the bonds be not issued unless or until an election had been held thereon, in which a majority of the qualified electors should vote in favor of the issuance of the bonds.

The board did not canvass or pass upon the sufficiency of the petition at the following April meeting, but continued the same until the regular May meeting.

Thereafter, on May 5, 1952, a petition by 262 persons was filed with the clerk in which the petitioners averred that they had theretofore signed the petition protesting against the issuance of the bonds, unless authorized in an election; but that, after mature reflection and with a better understanding of the matter, they felt that the best interest of the county would be served by the issuance of the bonds. Petitioners requested the removal of their names from the original petition and stated therein that, by their signatures, they were removing their names therefrom, and were expressing themselves in favor of the bond issue.

Thereafter, on the same date, the board, by its order, adjudicated that a petition had been filed on April 7, 1952, but that the determination thereof had been continued until the May 1952 meeting; that the board had canvassed and carefully examined the petition and found that it contained only 494 qualified electors; that there were 3,332 qualified electors in the county, and that 494 did not constitute 20% of such electors in the county. And, said order and resolution directed the sale of the bonds on May 10, 1952.

The Legislature, prior to May 5, 1952, enacted a local and private bill, which purported to validate all acts of the board of supervisors theretofore taken in the matter of the issuance of these bonds; but the act did not validate the sale and delivery of such bonds, if a petition signed by at least 20% of the qualified electors of the county should protest against the issuance or demand an election on or before the date set for objections therefor; and it expressly provided that, in such event, the bonds should not be executed and delivered until after an election in which the issuance should be approved.

The appellant's exceptions and complaints here amount to two reasons: (1) That the board, under Chapter 241, Laws of 1950, supra, and the local and private validating act, supra, was bound by the petition as filed on April 7, 1952, and could not thereafter remove any names from the petition; and (2) the proposed sale and delivery of the bonds on five days notice was unlawful.

We pass on the second objection first. Chapter 325, Laws of 1946, Section 4357-01, Code of 1942 Annotated, requires that bonds such as these 'shall be advertised for sale on sealed bids or at public auction, which advertisement shall be published at least two times in a newspaper published in the county in which the political subdivision, instrumentality, or a part thereof is situated, or county in which the bonds are to be sold; and if no newspaper is published in such county, then in a newspaper published in an adjoining county; the first publication in each case to be made at least ten (10) days preceding the date fixed for the reception of bids; and such notice to give the time and place of sale.'

However, it is expressly provided therein that the failure to advertise properly shall not invalidate the bonds, the statute being in these words: 'A failure to comply with any provision of this act shall not invalidate such bonds, but any member of the governing board, commission, or other governing authority who * * * shall wilfully fail to give the notices herein required shall be liable personally and on his official bond for a penalty in each case of five hundred dollars ($500.00), and, in addition thereto, for all financial loss that may result to the county, * * * resulting from such wilful failure to comply herewith; * * *.' The method for the recovery of such penalty and damages is also provided for therein.

Appellant concedes that the 494 names remaining on the original petition, after 262 had been stricken therefrom by reason of the counter petition, did not constitute 20% of the qualified electors of...